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Magna Carta Turns 800

Published on Sat, Dec 26,2015 | 16:45, Updated at Tue, Dec 29 at 23:23Source : CNBC-TV18 |   Watch Video :

The Magna Carta turned 800 this year. So as we wind down to the end of the year, we thought it appropriate to celebrate that grand birthday and question the evolution of rule of law in India. Aayush Ailawadi rounds it up.

The Magna Carta was sealed in Runnymede, England in 1215 as a peace treaty between King John and a group of rebel barons. It established the principle that nobody was above the law, not even the King! Later, the Magna Carta was taken overseas by the British. So, many colonies built legal systems based on the Magna Carta. During the American freedom struggle, the Magna Carta was looked at as a symbol of liberty and its principles were enshrined in the Bill of Rights. These very principles are the basis of most constitutional democracies the world over, including India.

Lord Goldsmith
Former Attorney General, UK
Partner, Debevoise & Plimpton
Rule of law, independence of judges, fair trial, due process, justice, this is really what Magna Carta stands for and it is as relevant today in the very complicated world we have today as it was in 1215.

Abhishek Mani Singhvi
Senior Advicate, Supreme Court
3000 years before Christ the Mahabharata says the same thing, the Upanishad's and the Manusmriti and the Arthashastra say the same thing. What is the same thing? It is the supremacy of law, of Dharma as we called it above the sovereign. The most sovereign of all sovereigns is Dharma. Non-discrimination, equality, sanction of the law, these are age old concepts.

Aayush Ailawadi
CNBC-TV18
Age old may be but India still struggles to fulfil them. To put things in context India ranked 59th on a list of a 102 countries worldwide on this year's edition of the rule of law index recently released by the World Justice Project. Be it judicial independence or judicial overreach or even delays in justice delivery, India's track record has been dismal on all these counts.

The biggest threat to judicial independence in India were the emergency years of 1975-77. The darkest period in Indian democracy, where the rights of Indian citizens were curtailed by the Indira Gandhi government.  The Supreme Court succumbed to executive pressure as well when in the ADM Jabalphur or Habeas Corpus case, a 5 judge bench of the apex court ruled in favour of the State's unrestricted powers of detention. The only dissenting judge, Justice HR Khanna was denied Chief Justiceship. At the time Supreme Court justices and chief justices were selected by the Executive.

Since the 90s a collegium of judges has overseen the selection of judges. Parliament’s efforts to change that failed, when in October this year, the SC struck down the NJAC Act as unconstitutional and void. The NJAC gave the executive an equal say in judicial appointments.

Ailawadi: Would you say that judicial independence is imperative to the rule of law?

Fali Nariman
Senior Advocate, Supreme Court
Absolutely. It is a basic. In fact that is the ratio of the judgement in the NJAC case. It may have stepped out or it may not, I am not discussing that, I am only mentioning that, that is the basis of it. Because you have preponderance of non-judges to appoint judges which they keep saying is not happening anywhere else in the world, yes but nowhere else in the world do you have so much of this jockeying for position, getting places in judgeships etc as you do in India. If you want to preserve the independence of the judiciary as a separate unit of government, I believe there is no other way than to keep it independent and that is what man like Justice Venkatachaliah has suggested in his review of the constitution. He suggested a national commission with three judges and two non-judges. That was where the whole split occurred and that couldn’t be passed. That he said was because of the basic features of the constitution.

Abhishek Mani Singhvi
Senior Advicate, Supreme Court
It is a fallacy to think that the NJAC will diminish, erode or eliminate judicial independence. It is about structures and forms. I support the NJAC, you may support the collegium. I think the last word has been said for the time being by the judgement.

Lord Goldsmith
Former Attorney General, UK
Partner, Debevoise & Plimpton
Will we move rather in the other direction? Our system was until a few years ago one in which the senior judges were all appointed by a government minister. Now he did it on advice, he did it with the concurrence of the judges, not their approval but he would consult the judges and the appointments were actually fine and nobody doubted independence. However it did look odd that the executive should be appointing the judges. So, we now have a system with an independent appointments commission and I think that is much better because it means that everyone in the country can have confidence that the judges who are deciding their cases, deciding if they go to prison, deciding if they win their case or lose their case, deciding whether they win or lose the case against the government are demonstrably independent. I think that is hugely important.

The Magna Carta may not have envisioned an activist judiciary but in India the Supreme Court has a view on virtually everything.14 years ago it directed all buses, three-wheelers and taxis in Delhi to convert to CNG… This week it ordered a temporary ban on diesel SUVs and luxury cars. From cleaning of temples and fighting the monkey menace to cancellation of telecom and coal block licenses - judicial activism on the part of India’s courts has often been construed by lawmakers as judicial overreach…

Ailawadi: Do you think that there is a very thin line between limiting government powers and perhaps judicial overreach?

Fali Nariman
Senior Advocate, Supreme Court
No, I don't agree with your judicial overreach. There is no judicial overreach, I refuse to accept that for the simple reason that whatever is done can be criticised if it is wrongly done but the judges have to interpret a particular state of affairs or a particular set of circumstances in accordance with law. As long as they do that I find there is no judicial overreach. There would be less interference if the executive did its job.

Lord Phillips
Former President, Supreme Court - UK
India differs from the United Kingdom in the sense that your Supreme Court is able to strike down legislation on the ground that it is contrary to the constitution, that is because you have a written constitution. We in the United Kingdom have no written constitution and the fundamental principle of our unwritten constitution is that parliament is supreme. So, if parliament makes a law the judges have to apply it. They are not in a position to strike it down on the ground that it is unconstitutional.

David Rivkin
President, IBA
Partner, Debevoise & Plimpton
Over time judiciaries in countries like India, UK, USA have generally found an appropriate balance. Again I frankly think sometimes our current Supreme Court has been more activist than a lot of past Supreme Courts and has overturned Obama administration regulation and statutes more frequently than has been done in the past by other Supreme Courts. So, there are times when the judiciary may move too far in one direction.

Nearly 3 crore cases are pending in Indian courts. The Allahabad High Court is operating at less than 50% of its sanctioned capacity. Perhaps that’s the reason that ten lakh cases are pending before the Allahabad HC alone. Nearly 40% of the sanctioned posts for judges at India’s High Courts are lying vacant.

Lord Phillips
Former President, Supreme Court - UK
When we hear about the length of time it takes for civil litigation to go through the courts in India or how long it takes before somebody who has been arrested and charged with an offence is brought to trial, we find this quite horrifying. It seems to me that there are a number of reasons for this quite exorbitant delay in your jurisdiction, one is that you haven’t got enough judges. Secondly I think sometimes the judges are too lenient in granting adjournments when they ought to be strict in insisting the lawyers bring cases to trial in due time and don't turn up at the last minute saying I am terribly sorry we are not ready, please can we have another six months.

There is another difference between your jurisdiction and ours. In the United Kingdom you cannot appeal at any level without first getting permission and this screens out time wasting appeals which are without merit. There will be a fairly rapid and short consideration  of the application for permission to appeal where the only issue is, is there really an arguable ground for appeal or not. This greatly reduces the pressure on courts of appeal and our Supreme Court.      

Fali Nariman
Senior Advocate, Supreme Court
I don't see why we don't have a system now where we can draw on leading lawyers at the bar in the High Courts particularly. I have been pleading Chief Justices of India, law ministers that request top ranking counsel in High Courts to please come on the bench at least for a while and you will be amazed how much he can deal with and dispose off. A man with practise or a woman with practise at the bar is able to dispose off a case in one tenth of the time of a person who has no practise or has little practise. That is where the choice arises. I hope that the new collegium etc will chose well.

Aayush Ailawadi
CNBC TV18   
While India grapples with more conventional issues elsewhere in the world the rule of law is facing more contemporary challenges, like privacy and state surveillance in the face of global terror.  

Lord Goldsmith
Former Attorney General, UK
Partner, Debevoise & Plimpton
One of the first things I had to do when I was Attorney General, I took office just 3 months before 9/11 and I watched the planes flying into the Twin Towers. We had to decide in London what would happen if at that very moment planes were flying towards London landmarks like Canary Wharf and would we decide actually to take the planes out of the skies rather than see them land on innocent people. That raises an acute question of the balance between the rights of some and the rights of the many and the rule of law is the only way you can answer those questions.

David Rivkin
President, IBA
Partner, Debevoise & Plimpton
When you look at how governments have to deal with issues like climate change, like terrorism, they will succeed better if they work together in a collective form. There are international law agreements, there are obligations that have been developed over the years through international law and if they work together within that framework they are much more likely to succeed than by developing spontaneous emergency responses that may have some short term success or may not but over the long term will undermine the rule of law which is what we are fighting for after all.

Aayush Ailawadi
CNBC TV18
800 years on and we are still fighting the world over to preserve and uphold the rule of law. I guess that speaks volumes about what the Magna Carta stands for even today.

 
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